The MDL court in the 3M Earplug litigation recently rejected defendant’s motion to delay a bellwether trial.  See In Re: 3M Combat Arms Earplug Products Liab. Lit., Case No. 3:19md2885 (N.D. Fla.).   Bellwether plaintiff Taylor had been set to go to trial in September, but voluntarily dismissed his claims on the eve of trial, after significant trial preparation and costs for this specific matter.  The court then substituted in another plaintiff (Adkins) from the bellwether pool on the same trial date, observing that the new plaintiff alleged similar claims of hearing loss and bilateral tinnitus while using 3M’s combat earplugs. Order.

The court said the parties should have anticipated from the beginning of the bellwether process that there would be instances where a bellwether alternate plaintiff would necessarily take the place of a bellwether plaintiff. “Thus, both sides already have all of the information they need to designate deposition testimony and create exhibit lists, and should have anticipated the possibility that Adkins would go to trial.” Id. at 2.

While the desire of the MDL court to keep the trains running and adhering to the trial schedule is understandable, the “anticipation” cannot reasonably mean that the parties should at all times be prepared to try every bellwether case on the first or next trial date.  It is typical for significant case-specific work be left to finalize, including the time-consuming work of preparing deposition designations, exhibit lists, and a pretrial stipulation.   The defendant argued that a better way to fill the void was to move up the next schedule plaintiff (set for October) with the thought that this case was much closer to ready.

Which brings your humble blogger to a more general point: in MDLs that have adopted the bellwether trial approach, the door is open for strategic manipulation by the PSC, as ultimately each plaintiff has the right to dismiss its case.  While there may, rarely, be valid reasons to dismiss a bellwether case voluntarily, much more common is for plaintiffs to do so to manipulate the takeaways from the bellwether process and avoid adverse outcomes.  Recognize where such a case typically sits.  It was investigated pre-complaint; it was filed in good faith and subject to Rule 11; it had been vetted for consideration of inclusion in the bellwether TRIAL pool; it may have already been subject to case specific motions to dismiss.  And then it was well into discovery, fact and expert.  Simply put, plaintiffs will often dismiss what they view as weak bellwether cases, whether they were originally selected by the court, or are a defense pick, or even a plaintiff mistaken selection.

For the MDL to work properly and fairly, the transferee court has to take steps to deter such manipulation, or mitigate it when it occurs.  Courts — and there is no silver bullet here — have  tried any number of responses.  These include dismissal with prejudice only, see In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 628 F.3d 157 (5th Cir. 2010). Or when a defense pick is dismissed, allowing defendants to strike a plaintiffs’ selection. See In re Mirena IUD Prods. Liab. Litig., No. 13-md-2434, Case Management Order re: Second Disposition Pool Selection Process (S.D.N.Y. Apr. 20, 2015).
Costs and fees is another approach. See In re Zofran, No. 1:15-md-2657-FDS, MDL Order No. 27 (D. Mass. Oct. 9, 2019)(considering motions for fees and expenses for voluntarily dismissed bellwether cases)(note we were involved in that one).

A more far-reaching reaction was found in  In re Cook Filter MDL (amended bellwether), No. 1:14-ml-02570 (MDL S.D. Ind.)(Third Amended CMO #27, 10/26/2020), where the court had granted the defendants’ motion for summary judgment in the first case, based primarily on the statute of repose. Plaintiff voluntarily dismissed the second bellwether, citing rulings on statute of limitations in other IVC Filter cases. And then the MDL court granted a motion to voluntarily dismiss the third bellwether in line, with prejudice (which is essential to help avoid gamesmanship). After discussion, and with due consideration given to the impact of COVID-19 on the ability of the courts to conduct a jury trial in the near term, the MDL court then concluded that the MDL would benefit from a new staged approach to resolving the cases, including enhanced initial screening, hearings on the issue of whether cases in the pool presented a compensable injury, and only then moving to new bellwether trials. To make this happen, the court directed plaintiffs to conduct a thorough review of the pool of cases to determine if they were barred by the applicable statute of repose or statute of limitations, in light of the prior rulings in the litigation. Those cases get taken out of the pool. Then, before further significant pre-trial activity occurs, the court will address general procedural and/or substantive issues raised by the parties that may inform the parties of the merit of certain cases, and with the further goal of reducing the number of new filings, resolving certain sub-groups of cases, and thus avoiding unnecessary trial-related expenses.

Because some of the pool cases implicated the defendant’s position that a certain alleged injury did not constitute a compensable injury as a matter of law, the court would tackle this as the next stage, with dismissals to follow if the court should find that the allegations did not constitute a compensable injury. After that, the parties will designate their entries into a new pool, and the court will use random selection to identify 32 cases from the pool lists constituting the new “Initial Bellwether Discovery Cases.” After an update of records, the parties will get a chance to “strike” 8 cases each from the pool. Interestingly, any case in the pool as to which a party refuses to waive the venue rights recognized under Lexecon, such a refusal will constitute a strike for that side. This is perhaps a kind of unfair penalty or condition on a party exercising its constitutional rights, but may be an effective tactic. Following that, each side will get to submit a single brief on the parties’ positions on why any of the remaining cases should or should not be selected as a bellwether trial case.  Complex, but arguably needed given the dismissals.

MDL courts need to be creative and aggressive in dealing with such tactics which can undermine the bellwether procedures.